[1985] OLRB Rep. November 1646
1929-85-U Canadian Union of Restaurant and Related Employees Local 88 (AFL-CIOCLC), Applicant, v. O'Tooles Food Corporation c.o.b. O'Tooles Roadhouse Restaurant (Barrie), Respondent
BEFORE: Owen V. Gray, Vice-Chairman.
APPEARANCES: Alick Ryder, Q. C. and Thomas L. Rees Jr., for the applicant; S. A. Bernofsky, Gordon Metcalfe and Erik Fish for the respondent.
DECISION OF THE BOARD; November 5, 1985
This is a complaint under section 93 of the Labour Relations Act alleging that the respondent has effected an unlawful lockout.
On August 2, 1985, the applicant trade union applied to be certified as bargaining agent for full-time and part-time employees of the respondent at its restaurant in Barrie, Ontario. On October 7, 1985, a differently constituted panel of the Board directed that representation votes be conducted. On October 25th, representatives of the applicant and respondent met and made tentative vote arrangements. Within days thereafter, the respondent closed the subject restaurant. Before it occurred, the possibility of the restaurant's closing had not been discussed or revealed to the union, either at the meeting of October 25th or otherwise in connection with its certification application, or in collective bargaining with respect to other O'Tooles Restaurant operations for which the applicant has been certified or at all. When he attended at the restaurant premises on October 30th, the trade union's organizer found the doors locked and a handwritten sign on them saying simply that the restaurant was no longer open.
A principal of the respondent was served with a summons which required him to bring with him certain documents. Those documents relating directly to the subject restaurant were produced for the inspection of counsel. With respect to financial records of other O'Tooles Restaurants under the control of principals of the respondent, I ruled that they would have to be available for production, but that they would not have to be produced for inspection before financial considerations were put directly in issue. Counsel for the respondent conceded as a fact that the respondent had no reports, memoranda, correspondence, minutes of meetings or other documents of any kind leading up to and relating to the decision to close the subject restaurant, other than its financial statements which had been produced. No employee or member of management was called as a witness by either party.
Section 75 of the Act provides that:
No employer or employers' organization shall call or authorize or threaten to call or authorize an unlawful lock-out and no officer, official or agent of an employer or employers' organization shall counsel, procure, support or encourage an unlawful lock-out or threaten an unlawful lock-out.
There is no question that a lock-out by the respondent at this time would be unlawful. "Lockout" is defined by section 1(1)(k) of the Labour Relations Act as follows:
"lock-out" includes the closing of a place of employment, a suspension of work or a refusal by an employer to continue to employ a number of his employees, with a view to compel or induce his employees, or to aid another employer to compel or induce his employees, to refrain from exercising any rights or privileges under this Act or to agree to provisions or changes in provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, an employers' organization, the trade union, or the employees;
The Board's decision in Preston Spring Gardens Retirement Home, [1984] OLRB Rep. Sept. 1241 was cited in argument, and I adopt what was said in paragraphs 15 and 16 of that decision:
A "lock-out" is a form of economic sanction undertaken by an employer to modify his employees' behaviour. It is a bargaining posture with both subjective and objective elements. In the first place, there must be a withholding of work opportunities: "a closing of a place of employment, a suspension of work or a refusal by an employer to continue to employ a number of his employees". Secondly, (although often much more difficult to determine), there must be a subjective intention to compel or induce his employees (or some of them) to refrain from exercising rights or privileges which they enjoy the Labour Relations Act, or to agree to changes in their terms and conditions of employment. Both elements must be present if the conduct in question is to be characterized, legally, as a "lock-out".
The termination or lay-off of employees does not, in itself, constitute a lock-out even though the consequences for employees may be the same, nor is it sufficient that the employer was motivated by anti-union animus, if his intention was not to preserve the employment relationship of at least some of his employees on terms more favourable to himself. As the Board noted in Doral Construction Limited, [1980] OLRB Rep. March 310, a mass termination of employees in favour of sub-contracting the work (there in response to a union organizing campaign) may be clearly illegal, yet still not constitute a "lock-out". What is critical, is the specific motive behind the employer's action, and, in particular, whether his intention is to preserve the relationship with his employees (or some of them) on different and more favourable terms. In the absence of such specific intent, the employer's conduct is not a lock-out" even though it may be an unfair labour practice or contrary to the terms of a collective agreement. That is why the Board has often held that a clear, final, unequivocal, and irrevocable decision to dispense with the services of some employees would not be a "lockout ' because the employer has no intention of preserving existing employment relationships on different terms or inducing employees to give up established rights. To reiterate: it may be an unfair labour practice, but it will not be an unlawful lock-out.
When an application is filed under section 93, the onus is on the applicant to show that a lock-out has been effected or threatened. This requires proof of the elements referred to in the two paragraphs I have just quoted and, particularly, proof of the specific intent referred to in the second of those two paragraphs. The applicant has failed to prove that intent. There is no direct evidence of the respondent's intent. The sign on the restaurant door gives no indication that the closing is temporary. There is no evidence the employees were told their layoffs were temporary. The employer's silence about this restaurant's closing during collective bargaining is inconsistent with an intention to influence employees in organized units. There is no evidence of its discussing the subject with employees in unorganized units. While I am prepared to draw from the evidence an inference that the respondent's decision was made and implemented with unseemly haste, I cannot go so far as to find from that the specific intent necessary to support a declaration under section 93. What the respondent has done may or may not constitute some other unfair labour practice. I am not called upon or authorized to decide that. On the facts before me, it has not violated section 75.
Accordingly, this application is dismissed.